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Managing Return to Work, Reasonable Accommodation and Leave Issues While Staying in Compliance with Federal and Massachusetts State Laws
While Workers' Compensation laws cover instances where an employee suffers work-related injuries or illnesses, employers may need to consider other state and federal statutes when confronted with return to work issues.  This article will address the requirements of the following laws:  on the federal side, The Americans with Disabilities Act and Family and Medical Leave Act and the state laws including the Massachusetts Anti-Discrimination Act: M.G.L. c.151B, the Massachusetts Maternity Leave Act and the Massachusetts Small Necessities Act.
Whereas the Americans with Disabilities Act (ADA) applies to employers with fifteen or more employees, in Massachusetts, the Massachusetts Anti-Discrimination Act, M.G.L. c.151B §4 applies to employers with six or more employees.  In pertinent part, the Massachusetts statute states:
It shall be an unlawful practice:
16. For any employer, personally or through an agent, to dismiss from employment or refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business.…In determining whether an accommodation would impose an undue hardship on the conduct of the employer's business, factors to be considered include:--
(1) the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget or available assets;
(2) the type of the employer's operation, including the composition and structure of the employer's workforce; and
(3) the nature and cost of the accommodation needed.
Physical or mental job qualification requirement with respect to hiring, promotion, demotion or dismissal from employment or any other change in employment status or responsibilities shall be functionally related to the specific job or jobs for which the individual is being considered and shall be consistent with the safe and lawful performance of the job.
The Massachusetts law is very similar to the Americans with Disabilities Act.  Chapter 151B uses the word “handicap,” and the ADA uses the word “disability.”  The definition of a “qualified handicapped person” under Massachusetts law is as follows:
Chapter 151B: Section 1 Definitions
 Section 1. As used in this chapter
 17. The term "handicap'' means (a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment, but such term shall not include current, illegal use of a controlled substance as defined in section one of chapter ninety-four C.

 
Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.   An impairment is a physiological disorder affecting one or more of a number of body systems, or a mental or psychological disorder.  A person is considered to be "handicapped" if s/he has a past record or medical history of a physical or mental impairment that substantially limited one or more major life activities, even though the impairment may no longer exist.  For example, a person who has a history of mental illness that is controlled through medication may still be considered a “handicapped person.”
An important aspect of the definition is when an individual is perceived as having a handicap.  A client with a brain seizure disorder that is controlled by medication may be perceived as having a disability if the company believes that she cannot be placed in overly stressful conditions.  A person who is morbidly obese may be regarded as a health risk, or an employer may believe that hiring him or her will increase insurance rates.
Under the ADA, a “mental Impairment” includes “any mental or psychological disorder such as emotional or mental illness.”  A person is considered to be "handicapped" if s/he has a past record or medical history of a physical or mental impairment that substantially limited one or more major life activities, even though the impairment may no longer exist.  The impairment must substantially limit the individual from performing one or more major life activities.  Medical review may be necessary to see if a reasonable accommodation will allow the employee to perform the essential functions of the job.
According to the ADA regulations, an employer may deem an employee unqualified for a position if the employee would pose a direct threat to the health or safety of the individual or others in the workplace.  Direct threat means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.  In Chevron U.S.A. Inc. v. Echazabal, a June 10, 2002, decision, the U.S. Supreme Court reversed the Ninth Circuit, holding that the ADA does allow an employer to refuse to hire a disabled individual because his performance on the job would endanger his own health.  
The Massachusetts Commission Against Discrimination website cites the following examples of impairments:
Paraplegia
Blindness
Deafness
Epilepsy
AIDS or being HIV positive
Diabetes
Heart Disease
Cancer
Mental retardation
Psychiatric disabilities
Learning disabilities
Alcoholism
History of drug addiction (but not current users)
In Massachusetts, the existence of an impairment is currently determined without considering whether its effect can be mitigated (improved or resolved) by the use of measures such as medication, auxiliary aids or prosthetic devices.  Even if an employee who is deaf can correct his/her hearing loss with a hearing aid, the employee may still be considered “handicapped” because he cannot perform the major life activity of hearing without an artificial device.  This is one area in which Massachusetts law differs from Federal law.
 In the case of Sutton et al. v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court held that ”the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment.”  In Massachusetts, the Supreme Judicial Court declined to follow that rule in Dahill v. Police Department of Boston, 434 Mass. 233 (2001), in which the Court held that the Massachusetts Anti-Discrimination statute does not require “consideration of mitigating or corrective devices in determining whether a person has a handicap.”
An employee who is ready to return from a leave due to injury, but claims to have become disabled must still be “qualified” to do his or her job.  “Qualified” under the law means “able to perform the essential functions of the job with or without reasonable accommodation.”
Essential functions are those duties that are so fundamental to the position that an employee cannot perform the job without being able to perform those duties.  Specifically, essential functions include, but are not limited to:
Any function for which the position was designed to perform; for example, being able to type is an essential function of the position of a secretary.
The functions are so specialized that a limited number of employees could perform the job if assigned.
The function is specialized and/or a specific employee is hired based on their individual ability to perform the position.
This is why the employer should take the precaution of carefully documenting the essential functions of each job in its handbook or list of job descriptions.  If an employee is disabled, but can still perform the essential functions of the job, then the employer must allow the employee to return to his or her position.  Therefore, a secretary who spends most of his/her time at a desk typing and filing, who occasionally goes out to get coffee for the office, should be able to return to his/her job, even if he/she can no longer drive.
An employer must provide a reasonable accommodation to allow a disabled person to work, unless that accommodation would impose on undue hardship on the employer.  Examples of reasonable accommodations include a revised schedule so an employee can take rests or go to medical appointments, installing physical equipment such as a ramp or adaptive equipment, assigning non-essential functions to other employees or allowing the employee to do his/her job in a different way.  Employers may ask the employee for medical documentation and the need for the reasonable accommodation.  
Under Federal law, any written medical information that is obtained as the result of a proper inquiry must be kept in separate files from the employee's personnel file.  This information must be kept confidential with certain exceptions, including informing supervisors and managers about necessary restrictions or accommodations in the work or duties of an employee.  The employer may also provide relevant medical information to workers' compensation offices, “second injury” funds, or according to any provision under workers' compensation laws.
Employers do not have to provide an accommodation to an employee if it would cause an undue hardship on the business.  As the statute states:
factors to be considered include:--

 
the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget or available assets;

 
(2)     the type of the employer's operation, including the composition and structure of the employer's workforce; and

 
(3) the nature and cost of the accommodation needed.

 
This is essentially a balancing test that needs to occur on a case-by-case basis.
Employers can protect themselves from claims of handicap discrimination by applying the job requirements uniformly.  They may make inquiries about the ability of the employee to perform any job-related functions, as long as the purpose of any inquiry is one of business necessity.  The employer has the right to determine if the employee can perform the essential functions of the job without risk of harm to the employee or others.
If an employee believes that an employer has discriminated against her because of her disability, he must file his claim with the Massachusetts Commission of Discrimination (MCAD) within 300 days from the last date of the alleged discrimination.  The case of Green v. Wyman-Gordon Company, 422 Mass. 551, 664 N.E. 2d 808 (1996), stated that filing with the MCAD is the exclusive procedure for bringing claims of discrimination against an employer.  Under M.G.L. c.151B §5, the statute of limitations for bringing a discrimination claim in Massachusetts was extended as of Nov. 5, 2002 from six months to 300 days to bring it in conformity with federal statutes.  
The employee must prove by a preponderance of the evidence that the employer violated a provision of discrimination law.  If the motive for a firing is not disputed, the employer must show that the employee could no longer perform the essential functions of the job, even with a reasonable accommodation.  When the motive for a firing is in dispute, the employee must first establish a prima facie case.  An example of a prima facie case is stated in Dartt vs. Browning-Ferris Industries, Inc., 427 Mass. 1 (1998),
We rule that to establish a prima facie case of unlawful employment discrimination on the basis of handicap under G. L. c. 151B, § 4 (16), a plaintiff must present credible evidence that (1) he is handicapped within the meaning of the statute; (2) he is qualified to perform the essential functions of the job with or without reasonable accommodation; (3) he was terminated or otherwise subject to an adverse action by his employer; and (4) the position he had occupied remained open and the employer sought to fill it.(fn2).  Id. at 2.

 
The respondent must then establish that it had a non-discriminatory reason for the adverse employment action.  The burden then shifts to the employee to show that the stated reason is not the real reason for the discharge.  Even if the termination is only motivated in part by a person's handicap, the plaintiff may recover if there is an unlawful reason for the firing.
     Finally, an employee may claim that the employer failed to provide a reasonable accommodation after an injury, even though the employer knew of the need for the reasonable accommodation.  In Wynne v. Tufts University School of Medicine, 932 F. 2d 19 (1992), the Court explained the plaintiff's burden in a reasonable accommodation claim:
The Complainant must prove that (1) s/he was a qualified handicapped individual; (2) s/he needed a reasonable accommodation due to her handicap to perform her job; (3) the employer was aware of the handicap, and was aware that the employee needed reasonable accommodation to perform her job; (4) the employer was aware of a means to reasonably accommodate the handicap, or the employer breached a duty, if any, to undertake reasonable investigation of a means to reasonably accommodate the handicap; and (5) the employer failed to provide the employee the reasonable accommodation.

 
If the employee proves these elements, the burden then falls upon the employer to prove that the reasonable accommodation would pose an undue hardship.  The employee must then try to show that the reasonable accommodation would not present an undue hardship.
      Once an employee has been part of the workers' compensation system, return to work issues may arise.  If an employee claims to be handicapped as a result of an injury, the employer must address this issue or run the risk of having the employee file a claim against him or her.  Other federal and Massachusetts laws may need to be considered when an employee has a job-related injury.
The Family and Medical Leave Act (FMLA), only applies to employers with fifty employees or more in a 75-mile radius for twenty or more calendar work weeks.  An employee is eligible if he/she has worked at least 1,250 hours during the previous twelve months.  It provides eligible employees with up to 12 weeks leave in a given year to care for:  a newborn and/or adopted baby, foster care, a first-degree relative who is ill, or a serious health condition that renders him/her unable to work.
Employers must develop a clear FMLA policy.  If the employer's leave policy is greater than the FMLA, the employer does not have to provide FMLA benefits, such as health benefits, beyond the FMLA period.  Employers must make sure that they designate the start and stop points of the leave. The original rule was that “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement.”  However, in Ragsdale v. Wolverine Worldwide, Inc, the Supreme Court seemed to indicate that this rule may change and leave can be characterized as FMLA leave after the fact.  The employer should effectively communicate, in writing, the employee's rights and obligations during the quantified leave, including the requirement the employee periodically report regarding his or her intent to return to work.
Employers should post policies in employee-accessible areas using different languages and formats (i.e., braille).  They should include all controlling policies in their employment handbook.  The employee does not have to mention FMLA leave when asking for a leave.
Under the FMLA an employee is entitled to be returned to the same position the employee held when the leave commenced or to an equivalent position.  An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits and working conditions.  This includes pay raises that would have occurred.
The employer must confirm the employee's FMLA leave no later than the next pay date.   This notice must include:
That the leave will be counted against the employee's annual FMLA leave entitlement;
Any requirement for medical certification;
The employee's right to substitute paid leave and whether the employer will require such substitution, along with any other conditions related thereto;
Whether the employee must make any premium payments to maintain health benefits, and the arrangements for making payment;
Whether the employee must present a fitness-for-duty certificate to be restored to employment;
The employee's status as a “key employee” and the potential consequences of that status;
The employee's right to restoration to the same or an equivalent job upon return from leave; and,
The employee's potential liability for payment of health insurance premiums paid by the employer if the employee fails to return to work for certain reasons.
     The Massachusetts Maternity Leave Act, M.G.L. c. 149 §105D may also come into play.  This law provides:
A female employee who has completed the initial probationary period set by the terms of her employment or, if there is no such probationary period, has been employed by the same employer for at least three consecutive months as a full-time employee, who is absent from such employment for a period not exceeding eight weeks for the purpose of giving birth or for adopting a child under the age of eighteen or for adopting a child under the age of twenty-three if the child is mentally or physically disabled, said period to be hereinafter called maternity leave, and who shall give at least two weeks' notice to her employer of her anticipated date of departure and intention to return, shall be restored to her previous, or a similar, position with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of her leave. Said maternity leave may be with or without pay at the discretion of the employer.
The law covers Massachusetts employers with at least six employees.  It should be noted that the Family and Medical Leave Act is not as comprehensive in its coverage, affecting all public employers and private employers with at least fifty employees.  If an employee elects to take a maternity leave and is covered by both the federal and state laws, the time off is calculated concurrently with a maximum of twelve weeks per year.
     The Massachusetts Small Necessities Leave Act, M.G.L. c. 149 §42D provides in pertinent part:
(b) An eligible employee shall be entitled to a total of 24 hours of leave during any 12-month period, in addition to leave available under the federal act, to:
participate in school activities directly related to the educational advancement of a son or daughter of the employee, such as parent-teacher conferences or interviewing for a new school;
accompany the son or daughter of the employee to routine medical or dental appointments, such as check-ups or vaccinations; and
accompany an elderly relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder's care, such as interviewing at nursing or group homes.
 (c) Unless this section provides otherwise, the terms of the federal act shall apply to leave under this section. As provided in section 102(d)(2)(A) of the federal act, 29 U.S.C. section 2612(d)(2)(A), an eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for any of the leave provided under this section, but nothing in this section shall require an employer to provide paid sick leave or paid medical leave in any situation in which the employer would not normally provide any such paid leave. Leave under this section may be taken intermittently or on a reduced leave schedule.

 
The statute covers Massachusetts public employers and all private employers with at least fifty employees within a 75-mile radius of employee's worksite (the same as the Family and Medical Leave Act).  Employers should be aware of this law as it applies to eligible employees (who have worked at least 12 months for the employer and at least 1,250 hours prior to the leave).  This policy should be distributed and posted.
     By carefully observing those Massachusetts and federal laws that apply to a given employer, the employer can protect itself from discrimination claims that arise as a result of workers' compensation leave.  Careful planning and documentation, along with communication with an injured employee, will help to prevent conflicts that may arise when the employee and employer are faced with return to work issues.

 
The material in this article was based substantially on the information provided by the Massachusetts Commission Against Discrimination on its website where additional information is also available: http://www.state.ma.us/mcad.    Massachusetts laws can be reviewed at www.state.ma.us/legis/laws/mgl/mgllink.htm.  The United States Department of Labor website is also an excellent resource: http://www.dol.gov/dol/audience/aud-workers.htm.

 
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